1rs-
TRADITIONAL
ATHABASCAN LAW WAYS
AND THEIR RELATIONSHIP TO CONTEMPORARY
PROBLEMS OF "BUSH JUSTICE"
Some Preliminary Observations on
Structure and Function
by
Arthur E . .Hippler
and
Stephen Conn
PR FACE
This . paper is directed toward helping achieve a better
understanding of traditional law ways among Alaska's Athabascan
Indians and of the present state of the administration of law in the
"bush"-village
Alaska. An outgrowth of the 1970 Bush Justice
Conference sponsored by the Alaska Judicial Council, the paper's
primary purpose is to help facilitate establishment
of more
appropriate
delivery and administration
of legal services for
ethnically distinct populations of Alaska.
NOTE:
This study specifically avoids making concrete recommendations,
even those intuitively obvious ones, which might flow from our.
observations and analysis." This is so because it is the first of a 4-part
series which will include analysis of Eskimo law ways, an alternative
interpretation of our findings and, finally, a systematic analysis· of Bush
Justice Administration. In this final number of the series, a number of
concretely specific and general recommendations
for change or
modification of the system of Bush Justice will be proposed.
Aside from that specific purpose, the paper also reflects the
current growing interest among ethnographers and others in the
traditional social organization techniques of primitive peoples,
especially in the area of dispute solving and conflict resolution. In
recent years, Nader (1965) edited an entire issue of the American
Anthropologist devoted solely to· this subject. Scholars such as
Bohannon (1965), Hoebel (1965), Whiting (1965), and others have
written extensively in this field.
Studies of law ways almost uniformly suggest that techniques of
dispute solving and conflict resolution are inextricably intertwined
with social, cultural, and economic conditions. As Pospisl noted this
year:
(to the ethnologist, law) ... is not an autonomous institution
but rather an integral part of .culture ... his law is part of
"living law," created and carried on by members of a
particular society, a social phenomenon that is ever changing
because of human action.
The scope, content, and meaning, as well as the administrative
techniques of the law, are determined by the culture that develops
them. Thus, people undergoing culture change may experience
serious problems in understanding contemporary legal systems that
are based on assumptions radically ctifferent from those with which
they are familiar. Research that elucidates the traditional legal
thought of groups undergoing change not only can make clearer the
basis of these misunderstandings,
but also can provide valuable
insights in dealing with minority subcultures.
However, if each culture's law system were to be described
solely in the terms of the culture studied (a so-called "emic" analysis,
such as that
proposed by Bohannon
[1969] ), its lack of
comparability
to Euro-American law would be of little use to
students of comparative law or to those concerned with the
administration of justice. The product would be an obscure study
unrelated to any other. As Pospisl (1972:4) notes, quoting Gluckman
and Hoebel, it is necessary, and in fact inevitable, to translate
traditional terms into those usable by persons accustomed to
American jurisprudence.
The authors of this paper are an anthropologist (Hippler) who
has spent five years studying Eskimos and Indians in Alaska, and an
attorney (Conn) with cross-/:!ultural experience in Brazilian and
Navajo law. This interdisciplinary collaboration was deemed most
appropriate for such research since it would add to the substantive
perspectives of law best developed by an attorney those insights into
the unique character of the distinct cultural group best provided by
an anthropologist. Methods used in the study include a review of the
ethnographic
and other pertinent information,
interviews with
Alaska
Natives in various communities,
and interviews and
observation of law enforcement,
judicial, and legal personnel
servicing this population.
Appreciation is expressed to all those, especially the village
people, who have assisted in this work.
Arthur E. Hippler
Stephen Conn
August 1972
TRADITIONAL
ATHABASCAN LAW WAYS
AND THEIR RELATIONSHIP TO CONTEMPORARY
PROBLEMS OF "BUSH JUSTICE"
Some Preliminary Observations on
Structure and Function
Arthur E. Hippler and Stephen Conn
INTRODUCTION
This paper analyzes Alaska Athabascan aboriginal law ways and
discusses
discontinuities
between them and contemporary
Anglo-American law, which create some difficulties for many
Athabascans in their relationship to contemporary legal processes.
These difficulties stem not from the lack of a traditional legal
system, but precisely from its existence-in a form that was deeply
integrated into all aspects of Athabascan life. The traditional legal
system operated in such a way as to develop expectations and
assumptions about normative behavior that in some cases are
discordant with contemporary law.
A number of authors, chiefly Osgood (1936) and McKennan
(1959, 1965) have commented on certain aspects of the Atltabascan
system of law. Although their insights have been useful, this paper is
based most heavily upon recent researches by the authors into
aboriginal Athabascan law ways) The information is primarily
relevant to the Upper Tanana Indians, though much of it has
application to most of Alaska's Interior Athabascan population. The
1This study, requested by the State Judicial Council, is for the purpose of
better understanding Alaska's Native law ways, toward the end of improving
"bush justice" in Alaska, and is the first in a series of studies of Alaska Native
law ways now underway. To this end the work has been done jointly by an
anthropologist and ap attorney.
Indians of the Upper Tanana were selected for the initial study
because they were among the very last to be contacted by
Caucasians. Many of the older people remember and can recount
their glimpse of the first United States citizens to come to that area.
The availability of first hand accounts of old law ways makes their
reconstruction more reliable.
Traditional Athabascan Culture
The aboriginal law ways of the Athabascan Indians reflect a
legal philosophy and standards of normative behavior that are based
on social realities and values. These, in tum, are partly derived from
the personality, economic o:i:ganization, and social structure of the
Athabascans, and partly are a reflection of the ecosphere they
inhabited.
The Upper Tanana group was made up of several small,
matrilineal family bands of wandering hunters and gatherers, who had
occasional fixed abodes within ·a relatively delimited territory around
the headwaters of the Tanana River northeast to the Dot Lake area,
bounded generally by the Mentasta mountains to the south and the
Mt. Ketchumstock area to the north. These Indians inhabited one of
the harshest climates in the world,2 and because of the scarcity of
game were forced to live much of the time in widely separated family
groups of maybe ten to fifteen persons. They would come together
into villages of perhaps sixty to one hundred persons only for short
periods of time.
maintain a balance in the duties and rights that individuals had
toward each other.
Within the matrilineal family, the most important male made all
decisions pertinent to the interior of that family. In conjunction with
his age mates from other clans and the opposite moiety, he arranged
marriages, organized potlatches, and maintained the matriline. The
leadership of an Athabascan group was first of all in the hands of
these family elders. Together they made up the village council. The
chief presided over the village council and had final authority from
which there was no appeal.
The chieftainship, unlike family membership, was patrilineally
inherited. Because a boy took his clan affiliation and hence his
moiety affiliation from his mother, and because husband and wife
could not belong to the same moiety, father and son were not related
in Athabascan terms. ( See Figure 1.) Patrilineal inheritance of the
cheiftainship accomplished three important ends. It provided that
the chieftainship would alternate between the moieties, thus averting
jealousy, and yet ensured that there would be a clear line of
succession and that the heir apparent could learn the role of chief at
first hand from the man closest to him in real life.
If a chief died without issue, the council of lineage heads would
meet and select a new chief. In addition to the obvious need to
concern itself with intravillage rivalries and other political realities,
two major criteria are uniformly .reported to have guided the
council's decision:
1.
The man they chose as chief must be a man with a
reputation for considering the entire group, not merely his
own matriline.
2.
He must never be precipitate
not "think too fast. "4
Social Organization and Leadership
The Upper Tanana were organized into matrilineal clans, and
the clans in each group were themselves grouped into phratries,
which in tum formed a dual exogamous moiety system (a moiety is a
social division based on kinship).3 That is, one married someone
from another clan, and, in fact, from the opposite moiety. Simply
stated, relationships between the two moieties were based on a series
of mutual expectations and reciprocal obligations that functioned to
2This area holds the record for the lowest temperatures ever recorded in
North America.
3In point of fact, it was not that simple. There is strong evidence of a
tripartite moiety system as well, but, for the purposes of this paper, that is not
relevant.
2
in his judgments.
He must
Values and Their Relationship to law Ways
Intertwined with Athabascan social organization, and forming
its unconscious core, were certain basic values that depended upon
4
These are clearly normative statements. The realities never were so nobly
worked out. Nonetheless, these statements _provide an understanding of the goal
if not the reality of the chieftainship.
3
FIGURE
1
normal inheritance
(ma trilin ea!)
chiefly inheritance
(patrilineal)
Indians not only alleviated guilt and anxiety over the death of a
loved one, but also expressed aggression and affiliation needs, and
promoted political power.6 They also used the potlatch to maintain
and strengthen the balance of relationships and obligations between
kin groups.
The emphasis on control of emotional impulses was also
institutionalized in the law ways, and was manifestly expressed in the
careful deliberative techniques that they demanded. The importance
of externalizing these controls was emphasized in the vesting of
absolute power in the chief. The need for internal psychic balance to
overcome fears of emotional disorganization, which was overtly
expressed in the attempt to maintain a balance of harmonious and
reciprocal obligations between groups, was further demonstrated in
the actual operation of the legai systE:m.
clan A
A8
AO
In this diagram, the triangles represent males, the circles females, and the
equal sign between them indicates a marriage. Lines descending from the
marriage show offspring. One can see that all children took the clan affiliation of
the mother, while the chieftainship, which went by patrilineal inheritance,
actually alternated between clans and therefore moities.
the modal emotional organization of the group's members. The
· critical issue of Athabascan emotional organization to an analysis of
law ways is the primary importance placed on control of emotional
impulses. The concern with internal individual controls tended to
lead Athabascans toward a great need for balancing relationships and
obligations. Thus, tendencies toward explosively violent emotions
were defended against by reliance on external authority at least as
much as by reliance on internal controls.5
This was expressed in two main ways. First was the potlatch, a
post-funeral gift-giving ritual, through which the Upper Tanana
5 An explication either of the modal emotional organization or the
methodology used to uncover it is beyond the scope of this paper and will be
dealt with at length elsewhere.
4
Athabascan Law Ways- The Philosophical Basis
clan B
The resolution
of conflicts and disputes in aboriginal
Athabascan society was based upon three primary assumptions. The
processes which flow from these assumptions were apparently
uniform for nearly all Alaska Athabascans. The assumptions are as
follows:
1.
Within his sphere of competency, the authority of the
leader was viewed as absolute. However, two kinds of
constraints upon that absolute authority did in fact
operate. First, it was limited to disputes considered serious
enough to demand intervention of a third party (the
authority) who at the same time represented th~ corporate
well-being of the village and the interests of the victim of
the wrongdoing. Second, in order to impose the most
severe sanctions for particularly
offensive acts, this
authority depended on the adroit use of conciliatory
techniques to mold village opinion and to achieve a
consensus of other villag~rs respected as leaders within
their lineage. If the sanction intended was warfare, this
consensus would extend to other powerful persons linked
through clan relationships in neighboring villages.
6The authors are presently, with Dr. L. Bryce Boyer, preparing an article
describing the psychological and social significance of the potlatch.
5
2.
3.
To be called before the village's authority for wrongdoing
implied that the authority had reached a conclusion that
the individual was "guilty." That is, his conduct was at
variance with widely recognized village norms that defined
"bad" public and private acts.7
The offender was called before the village authority for
two reasons. First, he needed to be reconciled with the
village through acts that demonstrated his sorrow for deeds
that had potentially damaged the balance between lineages
in the community. Second, he had to make amends to the
specific victim or victims of the wrong committed. The
problem before the authority, therefore, was to find a just
solution to both the public and private wrongs inherent in
a single act of misconduct.
The determination that the act in question was bad enough to
warrant a hearing required that the authority apply village norms to
facts ascertained by him or his associates through investigation.8
However, the selection of a remedy to reconcile the individual with
the village and to right the private injury was achieved during the
hearing through a conciliatory process. The outcome of the process
of reconciliation
was very much dependent upon the state of
repentance of the wrongdoer.
7 "Bad acts" were those with concrete and ascertainable consequences that
impaired private property rights and village relationships. Thus, acts that might
be categorized as crimes for the benefit of teaching youngsters about right and
wrong-theft, slander, adultery, or murder-were categorized only after
experience had shown that they empirically impaired individual survival and,
more importantly,
the success of cooperative work endeavors and
interrelationships of villagelife.
Swrongful acts that involved such diverse activities as slander, theft, or
adultery were described from the standpoint of injuries as property losses. The
sanction of remuneration for the victim in material terms facilitated the
resolution of private disputes with solutions that, while harsh, were less severe
than execution or banishment. The wrongdoer could also expect to lose his
public reputation for "right acting." The implications of this loss in reputation
in the many cooperative endeavors of village life were that he might suffer
additional property loss. A man who stole might be described as a thief by
villagersfor ten years after the act.
6
The PragmaticStructure and Operation
of Athabascan Law Ways
Besides its authoritative character, the Athabascan law system
had two other identifying characteristics. The law ways were flexible,
and all proceedings were deliberated at length. Flexibility entered
into traditional law in two ways. The first way was through formal
checks on the chief's authority and the second was through the
personalistic relations that characterized the proceedings.
The chief was the final authority. Nonetheless, if it was felt that
the chief was making a poor judgment, the subchief, who occupied a
position of authority second only to the chief, might be·approached
on the matter by one of the lineage heads and would thereafter
openly state his disagreement. At this point, the chief had to
conclude that more deliberation was necessary, because if someone
brooked his judgment in council, he would only do so for extremely
important reasons. A chief who would ignore such a clear signal
would soon find himself regarded as "hasty." Such a reputation was
hard to overcome, and Athabascans strove to avoid being so labeled.
The need to avoid a reputation for hastiness added to the already
existing tendency for long and careful deliberation.
Personalistic
rather than impersonal relationships
existed
between the authority and the accused. Justice was not expected to
be blind. In certain cases, even murder could be overlooked if, for
example, the murderer was a "good man," an important, moral man
who (very pertinently) had a large matrilineal kin group. Overlooking
this kind of political factor could lead to war.
The system was deliberate in that no decisions about important
matters were made in haste. Concerning critical issues such as
murder, deliberations might be continued for as long as five years.
Deliberation also entered into the techniques for forgiveness and
reintegration
into the group. A man who was a convicted or
confessed thief would have to be~ that stigma for as long as ten
years. Effectively, this acted as a period of probation. That is, a
recidivist during the probation period ran the risk of having his old
offenses taken into account during his new hearing. Very old
offenses, however, would be given less weight in later hearings about
new wrong acts.
Major Offenses and Their Resolution
The interaction of the general principles of balance, flexibility,
and deliberativeness with the absolute authority of the chief, the
presumed guilt of the accused, and the punishment through
repentance and restitution can best be seen in a description of the/
resolution of specific antisocial acts.
Adultery
Adultery was considered to be a serious offense because it could
lead to vio!ence, which was very dang~rous because it strained the
fabric of mutual obligations and reciprocal responsibilities that tied
together not only kin groups, but communities. At its worst,
adultery might lead to murder, the splitting up of a village, and hence
war between villages.
When adulterous acts were brought to the attention of the
chief, usually by the offended lineage heads, this ordinarily meant
that the lineage heads did not believe the problem could be solved
outside of the council. Though bringing such an act to the attention
of the council brought shame on the offending matrilines, to ignore
the situation could result in potentially very dangerous and violent
consequences. Therefore, often both the offending matriline and the
offended matriline would conjointly bring the problem to the chief.9
The guilty individuals, without their spouses, were brought
before the chief and council to discuss their case. If they chose to
deny guilt at this first meeting, a second meeting was held with the
spouses present. If the adulterers still stubbornly denied their guilt,
the offended spouses and the council would tear their clothing from
them and beat the offenders severely. If, on the other hand, the
guilty parties admitted their guilt at the first meeting, they would be
spared the beating, but would still be subject to the rest of the
sanctions.
At this point, the offending man would be ordered to
remunerate the offended husband. The husband was then permitted
to give a formal warning to the adulterer that if the act were
repeated, he would kill the offender. This warning was given before
9 The matriline most offended was that of the victimized husband; though
Athabascan women were by no means reticent and did not make life easy for a
straying husband.
8
the chief and council and meant that the killing of the recidivist
offender could be undertaken with impunity. No revenge could be
taken for his death, and, even if he were an important man, all the
recompense that his relatives could get from his death was a very
small amount of "wergild" or death payment.
If the adultery resulted in childbirth, the child would be given
to the father's relatives for upbringing, even though it belonged to its
mother's clan. A hearing similar to that described above would be
held before the chief, and the guilty man would be forced to pay a
fine (damages) to the husband of his paramour.
Theft
Theft was also a serious offense, but one in which mitigating
circumstances such as hunger might be considered. The offended
party would bring the case to the attention of the chief, who would
call both the complainant and defendant before him in council with
the lineage heads. If the man admitted his guilt and there were no
mitigating circumstances, he would be made to pay the amount of
his actual damages, plus an additional recompense to his victim. The
thief's matriline was not expected to help him with this obligation
and indeed had a vested interest
enforcing the judgment in order
to prevent antagonisms from growing between kin groups. If the
thief admitted his theft but had stolen through the press of great
need, especially hunger, he would be fined like the unmitigated thief,
but his matriline would be expected to assist his repayment and,
moreover, would be shamed since it was their responsibility to have
known about their kinsman's need and to have assisted him.
If a thief was either unrepentant, denied his guilt, or if there
were no mitigating circumstances, his punishment was more severe.
In addition to being forced to recompense his victim, he might be
banished from the village for from one to several years. A chronic
recidivist would be absolutely banished and, if he returned, would do
so on pain of death. Killing a banished man could be done without
fear of retaliation
and without assuming the obligation to
recompense a dead man's relatives. It should be noted that
banishment was nearly a capital puni!,hment. Living alone in Interior
Alaska is almost overwhelmingly difficult. Further, since Upper
Tanana bands tended to distrust each other, the exile might be killed
by wandering hunters if he could not account for himself to their
satisfaction. Finally, a thief who had been banished and returned at
9
the end of his sentence, and who had paid recompense to his victim,
still faced the approximate ten-year period of "probation."
luminaries.
impending,
active.10
Even though borrowing and then "forgetting" to pay back or
damaging the borrowed goods was not really considered theft,
Athabascans tended to borrow only from matrilineal kinsmen to
avoid inter-clan hostility. Nonetheless, the chronic borrower who was
slow to return things that he had borrowed from non-kin was
tolerated and was not brought before the chief. He did, however, lose
considerable status because of this weakness.
The offended matriline would contact all of its major family
heads in all of the surrounding villages. Discussion would continue
intermittently for up to five years to determine whether war should
be initiated. Such a process realistically occurred only when the
offender and his victim were not only from different clans, but from
different bands (villages), since the prospect of intravillage war was
so terrible that another solution to tbe conflict had to be found.
'
Murder
Murder was the most serious of crimes and could be punished
by death. There were various ways in which this problem might be
handled, however. The complainants in a murder case were usually
the matrilineal kinsmen of the victim. The chief then either had to
persuade the kinsmen of the victim to accept a death payment from
the killer, or persuade the kinsmen of the killer to accept the death
sentence. If the matriline of the victim were convinced to accept a
death payment after a hearing at which the murderer and various
witnesses, if any, were heard, the matter ended there. A death
payment would generally be accepted if the victim was felt to have
provoked the attack, or to have been of much lesser importance than
his killer. Among the considerations
involved would be the
importance and size of the killer's matriline. Even if they would
accept the death penalty for one of their number, they might
become unfriendly to the complainant group. In this event, a tension
and imbalance in the mutual expectations and obligations might
prove disastrous for the group. If the victim's matriline demanded
the death penalty and the chief concurred, the murderer was killed
by an executioner appointed by the chief. Should the murderer
attempt to flee, he would be considered a fugitive and anyone could
kill him with impunity.
Complications occurred when a "good" man (influential, well
thought of, and from a powerful family) murdered a man of similar
stature. In such a case, if the offended matriline would not accept a
death payment, there was usually no way for a death penalty to be
enforced. The offended matriline would feel J.tcould not ask for the
death of a "good" man, and the offending matriline would not
willingly a9quiesce in the capital punishment of- one of their
10
'
At such an impasse; all parties realize~ war was
and, once again, the deliberative process became
The clan's discussion about whether to wage war involved
several elements. There was always the hope that in time the
intransigence of the parties to the dispute would weaken and an
alternative other than war would be found. The extreme difficulties
and dangers of war and subsequent retaliation were pointed out in
detail to deter those who demanded vengeance.
If and when all the lineage heads in the clan and other
important men who were privy to the discussion were convinced in
favor of war, the clan or the lineage·head whose dispute had led to
this situation would be made war chief and preparations for war
would begin. There were no conscientious objectors to such wars.
When the war chief called his men, a refusal to comply was met with
summary capital punishment. At this point, "basic training" was
started. Chiefs and lineage heads would assemble their men for
exercises, practice wrestling, and weapons training. The men were
drilled in maneuver and fire tactics that primarily emphasized stealth,
surprise, and fire power. Additionally, the men were trained to dodge
arrows. The chief and lineage heads would fire arrows at the men,
who would try to avoid them. This training was expected to produce
its share of casualties and even fatalities.
A date would be set for massing and surprise attack. Everyone
understood and accepted that some people who were actually neutral
in the dispute would be killed. This would, of course, widen the
conflict. On the other hand, members of the offended lineage living
· in the village of the offenders faced the possibility of being
slaughtered as potential fifth columnists.
10
1n fact it appears that all wars started this way.
11
There was no simple way out of such a war, which had the
character of a war of extermination.
The wars ended with the
destruction of one or another group, or dragged on for a generation
and were finally abandoned out of exhaustion. It was for these
reasons that war was feared, and every effort was made to avoid it.
Thus, Athabascan warfare was not a random haphazard
occurrence, nor was it a spontaneous a-legal occurrence. It was
bounded by rules and institutionalized procedures. That is, war was
not simply the result of a lapse of legal organization, but rather an
integral part of the system, and the threat of war was a major
deterrent to murder.
Summary of Athabascan Law Ways
From the foregoing brief overview, some aspects of the
structure and function of traditional Athabascan law ways seem
clear. Perhaps most importantly, the "law" was in no sense a thing
apart from everyday life. Law ways stressed the maintenance of
harmonious relationships between the matrilineal kin groups. The
application of justice was to a significant degree dependent upon the
attitude of malefactor, and the bent of the law was toward
recompense of victims and reintegration of the offender.
The chief determined the resolution that a conflict or dispute
should have, taking into account.the degree of guilt and repentance
of the wrongdoer, his position in society, and the likely aftereffects
of the judgment. Thus, the chief balanced off the multivaried claims
of his society in the given issue in such a way that the general social
_good was upheld. He never acted precipitously.
The importance of deliberation and flexibility cannot be
overstated. Though the chief was absolute in one sense, th.e fragility
of the social order of the band was such that he could not afford to
act as a dictator. Discussion, consultation, and slow action prevented
fragmentation of the small bands, which could have endangered
everyone's survival, not to mention the possibility of precipitating
warfare.
Nonetheless, authority was vested in the chief. Individuals from
different lineages did not attempt to resolve serious disputes between
themselves, since such an attempt could precipitate feuding and
endanger the carefully developed system of mutual obligations and
12
reciprocal expectations. Disputants had to rely on a supposedly
objective authority, and, to prevent continuing conflict, had to
accept that authority as absolute.
The chief, however, acted in conjunction with the other
important men in the community, which meant that a decision once
reached actually was an expression of community consensus. While
couched in terms of the chief's absolute authority, any sanctions
undertaken actually had the unassailable support of all the dominant
members of the community.
In structural terms, the administration
of justice and the
maintenance of the balanced relationships between kin groups and
within a community were the same thing. The law, though abstractly
normative, was concrete in the sense that offenses were not acts
taken against an abstract code based upon philosophical distinctions
of right and wrong, but, rather, they were acts that endangered the
important network of obligations and expectations that made up
Athabascan society.
However,
even though the foregoing suggests equivocal
application of the law,judgments were not meant to be made ad hoc.
There was in fact the intention of universal application. Decisions of
the legal authority rested upon assumptions of obligatio, in which
the rights and duties of the parties were defined. The variance was
actually part of the universal application rule.
Overall, then, Athabascan law ways reflected the manner in
which the Athabascans integrated internal psychic needs, especially
the need for controls and balance, with the press of environmental
and social structural realities, such as their impoverished environment
and fragmented residence patterns, to provide a balanced deliberate
system for the resolution of the conflicts and disputes that are
inevitable among human beings.
Law Ways and Culture Change
At present,
Athabascans live in communities
in which
traditional power is no longer obviously legitimated by lineage heads
and is no longer absolute. The authority for law enforcement is now
in the hands of state troopers and city police. The institutional
13
--gani:,;atio' and much of the emotional commitment to traditional
ways has disappeared, since the chief no longer can impose
sanctions, except in his role as village leader, in which he can play
upon special relationships or duties conferred on him by law
enforcement officers. State troopers, who must travel to villages
when crimes are reported, often informally select the village chief to
notify the troopers of crimes and to sign criminal complaints. The
chief may then achieve status as a dispute resolver and judge by using
his option of notifying the authorities as leverage in seeking
reconciliation,
or even in imposing a sanction, when both the
wrongdoer and victim are convinced that a ready solution to the
dispute within the village is· preferable to an arrest and conviction in
the magistrate's court. This manipulation of informally derived
power as a lingering threat is a faint replica of the use of possible
intervention by the chief in earlier times to encourage individuals or
their families to reconcile their differences.
],:w
There are, however, other ways in which the old system
continues to have an impact on modern perception of law and legal
process. Present day 20-year-olds have grandparents who lived under
the old system. Their emotional expectations toward the present
judicial system appear to reflect a transfer of attitudes from the older
system.
Past and Present Law Ways:
Some Disjunctions
Athabascans often fail to perceive the legitimacy and rationality
of white legal authority. By the standards to which they adhere, this
legal authority is irrationally delegated to figures of low and
questionable status (village police, magistrates, and troopers). Police
and magistrates perform in a manner that appears to be arbitrary and
capricious when compared to the manner in which traditional
Athabascan authority reviewed the circumstances of the offense and
character of the offender with nearly excessive care; That care was
directed to the issue of what outcome would serve to reconstitute
the balance between lineages and the victim through compensation
for the victim's injury and an admission of guilt and repentance.
That the forces of law and order are headquartered distant from
the village and its personalized village relationships reinforces the
impression that the state legal system responds arbitrarily to crime at
the bush level. The authorities show little concern for remuneration
14
of the victim of criminal acts, leaving that for a separate civil process
for damages. This heightens the authorities' evident irrationality in
the eyes of the Athabascan.
the court's levy of a fine or jail
sentence, the judiciary seems to care for nothing more than form in
its intent to punish. Lack of concern for the wrongdoer's continuing
relationship with the village, his victim, and the victim's relatives is a
confusing fact of contemporary American justice for Athabascans
who experience it in "the bush."
Secondly, the laws for which Athabascans most often find
themselves called to account-public
drunkenness, petty assault, and
disorderly conduct-do
not have exact parallels in Athabascan
society. Indians do not take these minor disorders seriously as long as
they do not inconvenience anyone. To be arrested and detained for
such behavior is bewildering and infuriating, especially when the
consequences of the supposed bad act play little or no part in guiding
the results of the criminal process.
A third problem arises from the Indians' perception of the
judicial process and the participants in it. Certain aspects of the
court's dynamics are striking if compared with the expectations of an
Athabascan. For example, in contemporary American law, great
emphasis is placed upon the adversary system. Out of a symbolic
conflict between the parties and their attorneys, it is assumed that
both sides of the issue of innocence or guilt, of liability or
nonliability, will be presented before a decision is reached. Not only
is conflict between the defendant and prosecutor permitted, but it is
encouraged. Nothing like this existed in Athabascan law, where there
was no such thing as a defense attorney.
Next, the judge is not personally engaged in the problem, nor is
he already privy to the details of the dispute. He does not seek out
gossip about the defendant, but dismisses this as hearsay and as
inadmissible. Authority in court is strangely impersonal to one
accustomed to the idea of personal justice. The defendant is not
assumed guilty, but innocent. The arrest is not sufficient evidence of
guilt, although the state has taken serious action against the
defendant. Thus, in a criminal case, the court will even review the
circumstances of arrest, as well as the act complained against, to
' determine whether the agencies of law enforcement have acted
properly and whether procedural safeguards have been preserved for
the defendant to ensure that a true test of both the positions of the
defense and prosecution will take place.
15
The trial itself places the initial burden of proof upon the
prosecution, the representative of the state. Official conduct in
pursuit of evidence for the prosecution is examined. Should that
conduct be found to be faulty, the state's evidence will be excluded
in whole or in part by the judicial representative of the state. The
court may even be impelled to stop further consideration of the
alleged criminal act and to dismiss the case. These conflicts between
different officers of the white man's law, and the fact that
procedural details can overwhelm the substance of a case, are
inexplicable to one who presumes that being called before authority
means that the fact of guilt has already been established.
_The defendant has the legal right to stand mute in the
proceedings, and to examine the evidence of prosecution and official
conduct with respect to him. This is quite different from the
traditional notion of meekly confessing and accepting punishment.
Since his guilt in the eyes of the authority figures in the court may
seem to the defendant to be a foregone conclusion, and since he does
not understand adversarial dynamics, a meaningful consideration and
waiver or assertion of his rights is difficult. The Athabascan
defendant may be reluctant to challenge authority since he cannot
see that it is in his interest to refute statements of the police. If he
should plead hunger or poverty, he will find to his surprise that this
is not very often considered mitigating.
The Athabascan defendant probably does not expect that a
verdict of innocent will be the result of the proceedings. His aim is to
mollify the authority figures by agreeing with them and thus appease
their anger. Effectively, this means he will waive his rights to
obstruct the official inquiry. Thus, he attempts to extricate himself
from the criminal process by the traditional and expedient means of
agreeing with everything, waiving his rights, and assuming that
whatever the judge metes out as punishment will be just.
The court system's punishments appear pointlessly abstract to a
defendant who expects that they will be designed to· reconstruct.
relationships, assuage personal feelings, and reestablish his reputation
in the community. The severity of the sentence the defendant
receives may at times be related to the defendant's expressions of
sorrow or guilt, but the court will usually make no attempt to insure
that he recompenses his victim or his community. In fact, the
sentence tends to strike against the community, especially those who
are dependent upon the wrongdoer for sustenance.
Fines are an abstract payment to a faceless public authority,
and jail sentences are a strangely distorted version of traditional
banishment. Formerly inflicted for only the most serious crimes
committed
by unrepentant
offenders, banishment has become
routine through the imposition of jail sentences on most defendants
who are arrested by state troopers and processed through the
magistrate's court. Modern day banis_hment is not only routine, but
also considerably pleasant, since the jail is warm and serves regular
meals.
Although the typical Athabascan may question the legitimacy
of white authority or the appropriateness of its response in singling
him out as a malefactor and imposing punishment upon him, he
cannot escape its power. Absolute authority is something that he
well understands. The fact that he is on trial makes him assume he is
guilty according to laws he evidently does not understand. Yet, he is
often confused by the denouement of the trial because he is not
reconciled with anyone and he recompenses no one. The punishment
does not fit the crime as he understands crime and punishment. He
leaves the encounter in the belief that the best thing to do, if he is
the victim of a crime, is to avoid the legal process. As defendant, he
may well feel that there is no justice, since the justice with which he
is most comfortable would be connected with his role in village
society.
Local magistrates, who are the_main embodiment of the judicial
system to bush Alaskans, are often poorly trained in the workings of
the correctional process and the social theories that underlie them.
They are often motivated in their magistrial actions by local political
considerations or, in some cases, by personal notions of punishment
born out of religious or racial bias ( or self-hatred). Although higher
courts sometimes consult before sentencing with correctional officers
about the defendant's potential for reform, even the most sensitive
official cannot ordinarily provide for the needs of the individual
defendant, and at the same time his village, and the legal system.
16
17
REFERENCES
Bohannon, Paul J., "The Differing Realms of the Law," American
Vol. 67, No. 6, Pt. 2, December 1965, pp.
Anthropologist
33-42.
---,
"Ethnography and Comparison in Legal Anthropology," in
Law in Culture and Society Laura Nader (ed.), Chicago: Aldine
Publishing Co., 1969, pp. 401-418.
Hoebel, E. Adamson, "Fundamental Cultural Postulates and Judicial
Law Making in Pakistan," American Anthropologist, Vol. 67,
No. 6, Pt. 2, December 1965, pp. 43-56.
McKennan, Robert A., The Upper Tanana Indian&, Yale University
Publications in Anthropology
No. 55, New Haven: Yale
University Press, 1959.
--,
The Chandalar Kutchin, Arctic Institute of North America
Technical Paper No. 17, Montreal: Arctic Institute of North
America, 1965.
Nader, Laura, The Ethnography of Law, American Anthropologist
Vol. 67, No. 6, Pt. 2, December 1965.
Osgood, Cornelius, Contributions
to the Ethnography
Kutchin, Yale University Publications in Anthropology
New Haven: Yale University Press, 1936.
of the
No. 14,
Pospisl, Leopold, The Ethnography of Law, Addison-Wesley Modular
Publication
12, New York: Addison-Wesley Publishing
Company, Inc., 1972.
Whiting, Beatrice B., "Sex Identity Conflict and Physical Violence,"
American Anthropologist Vol. 67, No. 6, Pt. 2, December 1965,
pp. 123-140.
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